Haider v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 642

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Haider v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 642

File number(s):

SYG 1138 of 2021

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

11 August 2022

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Regional Employer visa – whether there was jurisdictional error.

Legislation:

Migration Act 1958 (Cth) s 363

Migration Regulations 1994 (Cth)

Cases cited:

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Kaur v Minister for Immigration and Border Protection [2014] FCA 915

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC

Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259

Varsi v Minister for Home Affairs [2019] FCA 504

Division:

Division 2 General Federal Law

Number of paragraphs:

21

Date of last submission/s:

8 August 2022

Date of hearing:

8 August 2022

Place:

Parramatta

Solicitor for the Applicant:

The applicant appearing on his own behalf

Solicitor for the First Respondent:

Ms Bennett of Minter Ellison

ORDERS

SYG 1138 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

TANVIR HAIDER

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	11 AUGUST 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application be dismissed.

3.The Applicant to pay the First Respondent’s costs fixed in the sum of $5900.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of Pakistan. The applicant applied for a Regional Employer Nominated (Class RN) (subclass 187) visa (“Regional Employer visa”) on 15 July 2016. On 26 April 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Regional Employer visa.

2. On 16 May 2019, the applicant filed and application seeking merits review of the delegate’s decision at the Administrative Appeals Tribunal (“the Tribunal”). On 27 May 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant his Regional Employer visa.

3. The applicant now seeks judicial review of the Tribunal’s decision in this Court.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

4. The Tribunal decision record is short, consisting of 25 paragraphs across 3 pages. Paragraphs 1 to 5 of the Tribunal decision record provides the procedural background of the applicant’s visa application.

5. At paragraph 6, the Tribunal states that it wrote to the applicant to invite him to attend a hearing scheduled for 27 May 2021. At paragraph 7, the Tribunal notes that two hearing reminders were sent to the applicant’s mobile via SMS, one on 20 May 2021 and the other on 26 May 2021. On the day of the hearing, on 27 May 2021, the Tribunal attempted to call the applicant numerous times, unsuccessfully. At paragraph 8, the Tribunal states that the applicant did not appear before the Tribunal at the hearing at the scheduled time and no reason for the non-appearance had been received.

6. At paragraph 9, the Tribunal considred their power to adjourn the review under s 363(1)(b) of the Migration Act 1958 (Cth) (“the Act”). At paragraph 10, the Tribunal considers the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. The Tribunal also references Minister for Immigration and Citizenship v Li [2013] HCA 18, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, and Kaur v Minister for Immigration and Border Protection [2014] FCA 915 when confirming that it must have regard to the reasonableness of any request for an adjournment.

7. At paragraph 11, the Tribunal considered the circumstances of the case, the fact that information as to whether the applicant met the requirements under the Migration Regulations 1994 (Cth) (“Regulations”) would be forthcoming, whether the applicant had a fair opportunity to provide information previously, and the significance of the information to the applicant. At paragraph 12, the Tribunal notes that the applicant had been aware of the reasons for the delegate’s decision for over two years.

8. At paragraph 13, the Tribunal determined that the applicant had a fair opportunity to provide information and had sufficient time to take steps to satisfy the requirements for the grant of his Regional Employer visa. Accordingly, at paragraph 14, the Tribunal decided not to exercise its discretion to adjourn the review.

9. At paragraph 16, the Tribunal states that the dispositive issue was whether the position to which the applicant related was subject of an approved nomination. At paragraphs 17 and 18 of the decision record, the Tribunal outlines the relevant clause, being cl 187.233 of Schedule 2 to the Regulations.

10. At paragraph 19, the Tribunal noted that the nomination lodged by Roma Food Pty Ltd (“the nominator”) was refused by the delegate on 21 March 2019. At paragraph 20, the Tribunal notes that the nominator sought merits review of the delegate’s decision, however the result was that the nomination remained refused. At paragraph 21, the Tribunal notes that the applicant had not provided the Tribunal with any evidence or submissions in relation to the nominator’s application for review.

11. At paragraph 23, the Tribunal found that cl 187.223 of Schedule 2 to the Regulations was not met. At paragraph 24 of the decision record, the Tribunal notes that the applicant had only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream and that no claims had been made in respect of any other stream. As the requirements for the grant of a visa in the Direct Entry stream had not been satisfied, the decision under review had to be affirmed.

    GROUNDS OF JUDICIAL REVIEW

12. The applicant’s grounds of judicial review are contained within an Initiating Application filed with the Court on 22 June 2021. The grounds of review are reproduced below as they appear in the Initiating Application:

    1.   The Department of Immigration Case officer refused my nomination but actually it should not have been refused as it was a genuine position.

    2.   The I have worked 3 years over there and even had a positive skill assessment.

    3.   If I would have given the visa I would have worked hard and would have made business flourish

    APPLICANT”S SUBMISSIONS

13. The applicant appeared before the Court by telephone. The applicant was unrepresented.  The applicant did not request an interpreter and the Court was satisfied he was able to follow and participate in the hearing.  The Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions.

14. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken. Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of his case. 

15. The applicant told the Court that he was unable to provide any information to the Tribunal regards his employer nominator. The applicant would have liked to, but was simply unable. The applicant was also unable to provide the Court with any additional information.

    CONSIDERATION

16. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

17. Three grounds of judicial review relied upon fail to identify any jurisdictional error on the part of the Tribunal.  At best, they appear to take issue with the merits of the applicant’s visa application, which is outside the court’s jurisdiction: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259).

18. The critical issue in this case, as identified by the Tribunal, was that the delegate refused the application on the basis that the applicant was not the subject of an approved nomination as required by clause 187.233(3) of Schedule 2 to the Regulations. In these circumstances, where there was no approved employer nomination, the Tribunal could not have come to any other decision other than the one it did. To be granted the type of visa the applicant sought, there must be an approved employer nomination. There was not.

19. As the applicant is unrepresented the Court has perused the Tribunal decision record but is unable to ascertain any unarticulated jurisdictional error.

20. The Court also agrees with a further submission by the first respondent that, even if jurisdictional error were to be found (which is not conceded), it would be futile to remit the matter back to the Tribunal. This is because in circumstances where a related nomination has been refused and a review application dismissed, it follows that an applicant can never satisfy cl 187.233 of the Regulations: (see; Varsi v Minister for Home Affairs [2019] FCA 504 at [21]). Thus, any other Tribunal reviewing the matter would have no option but to affirm the decision under review.

    CONCLUSION

21. As none of the grounds of judicial review have merit, the application must be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       11 August 2022